Has the Supreme Court Gone off its Rails? (HHS)


herdis_helga_schopka_02_dlWarning: this column contains explicit language and graphic descriptions of sexual violence.

Recently, Iceland Review reported on a Supreme Court sentence in the case of four members of the Icelandic branch of Hell’s Angels, who tortured and sexually abused a young woman in late 2011. The attack was vicious and the Supreme Court increased the penalty from that meted out by the lower branches of the judiciary. Given the severity of the assault, the increased sentence is certainly a good thing.

What is appalling in the verdict, and well nigh inexplicable, is the Supreme Court’s ruling that the sexual assault part, when one of the perpetrators forcibly entered the victim’s vagina and anus with his fingers, was not sexual assault (as the district court had declared it) but simply a part of the overall assault.

According to the four male judges on the case, the perpetrator’s alleged intent had not been sexual gratification but “only” to hurt the victim and therefore the act could not be judged according to the penal code on sexual assault. The sole female judge on the case handed in a dissenting opinion.

There, we have it. As of last week, in Iceland a rape is not a rape unless the rapist is horny. Using a screwdriver to do the same thing is not sexual assault unless the perpetrator gets a sexual kick out of it. If he or she “merely” intended to hurt their victim, it’s a plain and simple assault. Or so the four male judges think. One has to wonder if they actually think that rape and bona fide sexual assault is committed for the victim’s general pleasure.

Almost everyone in Iceland, and in the Western world for that matter, seems to have come to understand that rape and sexual assault is about power: domination and control over the victim, humiliation of the victim, hurting the victim. Rape is not about the perpetrators getting sexual release.

Unfortunately, the four Supreme Court judges to pass this verdict seem to be stuck in the Middle Ages, thinking that unless the rapist got off on it, his actions shouldn’t be considered sexual in nature.

They don’t even seem to understand the intent of the law they judge by—as is plainly evidenced by judge Benediktsdóttir’s dissenting opinion (see link above). A vicious attack on a person’s sexual autonomy is, er, not a sexual assault—unless the attacker was seeking sexual gratification.

I’m still not sure I understand this: someone inserting something into my vagina without my consent is not raping me if said someone is not horny themself. They are just attacking me, just hurting me, humiliating me.

And here I was thinking that rape WAS an attack designed to hurt and humiliate the victim. I must have misunderstood.

According to this logic, Congo is not the rape capital of the world because the horrific and systemic sexual violence perpetrated there is a tool in warfare and not a means for sex-starved Congolese men to get their sexual gratification. Take that, ‘rape’ victims of Congo! There are four men in robes in Iceland who know a whole lot better what happened to you than you yourself will ever know!

Can you tell I’m angry?

Anyway, and practically speaking, does it matter whether these people are sentenced for sexual assault rather than ‘regular’ assault? Aren’t they all getting punished anyway? Isn’t this just a ‘legal technicality,’ like one prominent Icelandic lawyer, currently running for parliament, pointed out while opining that the widespread protests against the ruling only come from “extremists”?

The penal code for the two different types of assault is similar—each carrying a maximum sentence of 16 years in prison. Sex crimes are, however, viewed much harsher than ‘regular’ violent crime in Iceland and the stigma that such a sentence carries is substantially greater. One could therefore argue that if this verdict becomes a precedent (there is no reason to believe it won’t), the penal code on sex crimes will lose much of its deterring power.

As far as a legal layperson like myself can tell, the truly disturbing issue with this verdict (apart from the judges’ nearly inhuman lack of empathy with the victim) is that the (always alleged, for obvious reasons) intent of the criminal is more significant for deciding how he or she should be tried than what the criminal act actually entailed. A violation of someone’s sexual autonomy is only a violation of someone’s sexual autonomy if the crook intended to violate said sexual autonomy. Just like a theft is not a theft if the thief didn’t need the money. No, wait….

We all tend to think, want to think, that Iceland’s record on gender equality and human rights is impeccable and it is important that we realize that is not the case.

Every human being living in Iceland needs to know that the Supreme Court has put the right to sexual autonomy in jeopardy. There is no reason to believe that this verdict will not be treated as precedent by the Icelandic courts in future cases.

This verdict is therefore a major backwards step in the fight against sexual violence in Iceland. It may take us years to regain the ground lost in the fight to have sexual violence recognized as such in courts of law.

Herdís Helga Schopka – herdis2002@gmail.com

Herdís is an Icelandic geochemist and guide who currently lives in Berlin. She is moving back to Iceland soon for a new job and to hang out with her grumpy feminist friends. Her favorite color is pink.

Herdís is filling in for Zoë today.

Views expressed here are the author's own and do not necessarily reflect the opinions of Iceland Review.